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SENATE FLOOR VERSION
April 1, 2024
ENGROSSED HOUSE
BILL NO. 3778 By: Duel of the House
and
Garvin of the Senate
An Act relating to digital assets; creating the
Revised Uniform Fiduciary Access to Digital Assets
Act; defining terms; clarifying applicability of act;
permitting user to use online tool to direct
custodian to disclose or not disclose certain digital
assets; providing procedure if online tool not used;
establishing that user's direction overrides certain
contrary terms-of-service agreement; clarifying that
act does not impair certain right; clarifying that
act does not expand nor give certain rights;
permitting modification or elimination of certain
access; permitting custodian grant certain access;
permitting custodian to provide cer tain copy of
digital asset; permitting reasonable administrative
charge; specifying that custodian need not disclose
certain digital asset; permitting custodian to not
disclose certain digital assets that impose undue
burden; permitting seeking of certain court order;
directing that custodian make certain disclosures to
personal representative of the estate of the user;
directing custodian make certain disclosures of
catalog of electronic communications to personal
representative; directing custodian make c ertain
disclosures of electronic communications to agent;
directing custodian make certain disclosure of
catalog of electronic communications to certain
agents with certain authority; directing that
custodian make certain disclosures to trustee;
permitting court to grant access to guardian of
certain digital assets; directing custodian to make
certain disclosures of electronic c ommunications to
guardian; permitting guardian with general authority
to suspend or terminate certain accounts for good
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cause; establishing legal duties of fiduciary charged
with management of digital assets; clarifying
authority of fiduciary or designated recipient's
authority; permitting fiduciary with certain
authority certain right of access to certain digital
assets; clarifying t hat fiduciary acting within
certain scope is an authorized user; permitting
custodian to disclose certain information to
fiduciary when necessary to terminate certain
account; permitting fiduciary to request termination
of user's account; directing that cu stodian comply
with request within time frame; permitting fiduciary
or designated recipient to seek court order;
directing that order must not violate certain federal
law; permitting custodian to notify user of certain
requests; permitting custodian to den y certain
requests; clarifying that act does not limit certain
abilities of custodian; limiting liability; directing
for certain consideration in application of act;
clarifying that act modifies, limits, or supersedes
certain law; providing for severabilit y; providing
for codification; and providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3101 of Title 58, u nless there
is created a duplication in numbering, reads as follows:
This act shall be known and may be cited as the "Revised Uniform
Fiduciary Access to Digital Assets Act".
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3102 of Title 58, unless ther e
is created a duplication in numbering, reads as follows:
As used in this act:
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1. "Account" means an arrangement under a terms -of-service
agreement in which a custodian carries, maintains, pr ocesses,
receives, or stores a digital asset of the user or provides goods or
services to the user;
2. "Agent" means an attorney -in-fact granted authority under a
durable or nondurable power of attorney;
3. "Carries" means engages in the transmission of an electronic
communication;
4. "Catalog of electronic communi cations" means information
that identifies each person with which a user has had an electronic
communication, the time and date of the communication, and the
electronic address of the person;
5. "Guardian" means a person appointed by a court to manage the
estate of a living individual. The term includes a limited
guardian;
6. "Content of an electronic communication" means information
concerning the substance or meaning of the communication wh ich:
a. has been sent or received by a user,
b. is in electronic storage by a custodian providing an
electronic-communication service to the public or is
carried or maintained by a custodian providing a
remote-computing service to the public, and
c. is not readily accessible to the public;
7. "Court" means the court of proper jurisdiction;
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8. "Custodian" means a person who carries, maintains,
processes, receives, or stores a digital asset of a user;
9. "Designated recipient" means a person chosen by a us er using
an online tool to administer digital assets of the use r;
10. "Digital asset" means an electronic record in which an
individual has a right or interest. The term does not include an
underlying asset or liability unless the asset or liability is
itself an electronic record;
11. "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic,
or similar capabilities;
12. "Electronic communication" has the meaning set forth in 18
U.S.C., Section 2510(12);
13. "Electronic-communication service" means a custodi an that
provides a user the ability to send or receive an electronic
communication;
14. "Fiduciary" means an original, additional, or successor
personal representative, guardian, agent, or tru stee;
15. "Information" means data, text, images, videos, sounds,
codes, computer programs, software, databases, or the like;
16. "Online tool" means an electronic service provided by a
custodian that allows the user, in an agreement distinct from the
terms-of-service agreement between the custodian and user, to
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provide directions for disclosure or nondisclosure of digital assets
to a third person;
17. "Person" means an individual, estate, business or nonprofit
entity, public corporation, government or g overnmental subdivision,
agency, or instrumentality, or other legal entity;
18. "Personal representative" means an executor, administrator,
special administrator, or person that performs substantially the
same function under the laws of this state other t han this act;
19. "Power of attorney" means a record that gran ts an agent
authority to act in the place of a principal;
20. "Principal" means an individual who grants authority to an
agent in a power of attorney;
21. "Protected person" means an individu al for whom a guardian
has been appointed. The term includes an individual for whom an
application for the appointment of a guardian is pending;
22. "Record" means information that is inscribed on a tangible
medium or that is stored in an electronic or o ther medium and is
retrievable in perceivable form;
23. "Remote-computing service" means a custodian that provides
to a user computer processing services or the storage of digital
assets by means of an electronic communications system, as defined
in 18 U.S.C., Section 2510(14);
24. "Terms-of-service agreement" means an agreement that
controls the relationship between a user and a custodian;
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25. "Trustee" means a fiduciary with legal title to property
under an agreement or declaration that creates a benef icial interest
in another. The term includes a successor trust ee;
26. "User" means a person who has an account with a custodian;
and
27. "Will" includes a codicil, testamentary instrument that
only appoints an executor, and instrument that revokes or re vises a
testamentary instrument.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3103 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. This act applies to:
1. A fiduciary acting under a will or power of attorney
executed before, on, or after November 1, 2024;
2. A personal representative acting for a decedent who died
before, on, or after November 1, 2024;
3. A guardianship proceeding commenced before , on, or after
November 1, 2024; and
4. A trustee acting under a trust created before, on, or after
November 1, 2024.
B. This act applies to a custodian if the user resides in this
state or resided in this state at the time of the user's death.
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C. This act does not apply to a digital asset of an employer
used by an employee in the ordinary course of the employer's
business.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3104 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. A user may use an online tool to direct the custodian to
disclose to a designated recipient or not to disclose some or all of
the user's digital assets, including the content of ele ctronic
communications. If the online tool allows the user to modify or
delete a direction at all times, a direction regarding disclosure
using an online tool overrides a contrary direction by the user in a
will, trust, power of attorney, or other record.
B. If a user has not used an online tool to give direction
under subsection A of this section or if the custodian has not
provided an online tool, the user may allow or prohibit in a will,
trust, power of attorney, or other record, disclosure to a fiduci ary
of some or all of the user's digital assets, including the content
of electronic communications sent or received by the user.
C. A user's direction under subsection A or B of this section
overrides a contrary provision in a terms -of-service agreement that
does not require the user to act affirmatively and distinctly from
the user's assent to the terms of service.
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SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3105 of Title 58, unless t here
is created a duplication in numbering, reads as follows:
A. This act does not change or impair a right of a custodian or
a user under a terms -of-service agreement to access and use digital
assets of the user.
B. This act does not give a fiduciary or designated recipient
any new or expanded rights other than those held by the user for
whom, or for whose estate, the fiduciary or designated recipient
acts or represents.
C. A fiduciary's or designated recipient's access to digital
assets may be modified or eliminated by a user, by federal law, or
by a terms-of-service agreement if the user has not provided
direction under Section 4 of this act.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Sect ion 3106 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. When disclosing digital assets of a user under this act, the
custodian may, at its sole discretion:
1. Grant a fiduciary or designated recipient full access to the
user's account;
2. Grant a fiduciary or designated recipi ent partial access to
the user's account sufficient to perform the tasks with which the
fiduciary or designated recipient is charged; or
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3. Provide a fiduciary or designated recipient a copy o f a
record of any digital asset that, on the date the custodian received
the request for disclosure, the user could have accessed if the user
were alive and had full capacity and access to the account.
B. A custodian may assess a reasonable administrative charge
for the cost of disclosing digital assets under this ac t.
C. A custodian need not disclose under this act a digital asset
deleted by a user.
D. If a user directs or a fiduciary requests a custodian to
disclose under this act some, but not all, of the user's digital
assets, the custodian need not disclose the assets if segregation of
the assets would impose an undue burden on the custodian. If the
custodian believes the direction or request imposes an undue burden,
the custodian or fiduciary may s eek an order from the court to
disclose:
1. A subset limited b y date of the user's digital assets;
2. All of the user's digital assets to the fiduciary or
designated recipient;
3. None of the user's digital assets; or
4. All of the user's digital asset s to the court for review in
camera.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3107 of Title 58, unless there
is created a duplication in numbering, reads as follows:
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If a deceased user consented or a court directs disclosure of
the contents of electronic communications of the user, the custodian
shall disclose to the personal representative of the estate of the
user the content of an electronic communication sent or received by
the user if the representative gives the custodian:
1. A written request for disclosure in physical or electronic
form;
2. A certified copy of the death certificate of the user;
3. A certified copy of the letter of appointment of the
representative or a small -estate affidavit or court order;
4. Unless the user provided direction using an online tool, a
copy of the user's will, trust, power of attorney, or other record
evidencing the user's consent to disclosure of the content of
electronic communications; and
5. If requested by the custodian:
a. a number, username, address, or other unique
subscriber or account identifier assigned by the
custodian to identify the user's account,
b. evidence linking the account to the user, or
c. a finding by the court that:
(1) the user had a specific account with the
custodian, identifiable by the information
specified in subparagraph a of paragraph 5 of
this section,
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(2) disclosure of the content of electronic
communications of the user would not violate 18
U.S.C., Section 2701 et seq., 47 U.S.C., Section
222, or other applicable law,
(3) unless the user provided direction using an
online tool, the user consented to disclosure of
the content of electronic communications, or
(4) disclosure of the content of electronic
communications of the user is reasonably
necessary for administration o f the estate.
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3108 of Title 58, unless there
is created a duplication in numbe ring, reads as follows:
Unless the user prohibited disclosure of digital assets or the
court directs otherwise, a custodian shall disclose to the personal
representative of the estate of a deceased user, a catalog of
electronic communications sent or recei ved by the user and digital
assets, other than the content of e lectronic communications, of the
user, if the representative gives the custodian:
1. A written request for disclosure in physical or electronic
form;
2. A certified copy of the death certific ate of the user;
3. A certified copy of the letter of appointment of the
representative or a small -estate affidavit or court order; and
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4. If requested by the custodian:
a. a number, username, address, or other unique
subscriber or account identifier ass igned by the
custodian to identify the user's account,
b. evidence linking the account to the user,
c. an affidavit stating that disclosure of the user's
digital assets is reasonably necessary for
administration of the estate, or
d. a finding by the court that:
(1) the user had a specific account with the
custodian, identifiable by the information
specified in subparagraph a of paragraph 4 of
this section, or
(2) disclosure of the user's digital assets is
reasonably necessary for administration of the
estate.
SECTION 9. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3109 of Title 58, unless there
is created a duplication in numbering, reads as follows:
To the extent a power of attorney expressly grants an agent
authority over the content of electronic communications sent or
received by the principal and unless directed otherwise by the
principal or the court, a custodian shall disclose to the agent the
content if the agent gives the custodian:
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1. A written request for disclosure in physical or electronic
form;
2. An original or copy of the power of attorney expressly
granting the agent authority over the content of electronic
communications of the principal;
3. A certification by the agent, under pena lty of perjury, that
the power of attorney is in effect; and
4. If requested by the custodian:
a. a number, username, address, or other unique
subscriber or account identifier assigned by the
custodian to identify the principal's account, or
b. evidence linking the account to the principal.
SECTION 10. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3110 of Title 58, unless there
is created a duplication in numbering, reads as follows:
Unless otherwise ordered by the court, directed by the
principal, or provided by a power of attorney, a custodian shall
disclose to an agent with specific authority over digital assets or
general authority to act on behalf of a principal, a catalog of
electronic communica tions sent or received by the principal and
digital assets, other than the content of electronic communications,
of the principal if the agent gives the custodian:
1. A written request for disclosure in physical or electronic
form;
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2. An original or a co py of the power of attorney that gives
the agent specific authority over digital assets or general
authority to act on behalf of the principal;
3. A certification by the agent, under penalty of perjury, that
the power of attorney is in effect; and
4. If requested by the custodian:
a. a number, username, address, or other unique
subscriber or account identifier assigned by the
custodian to identify the principal's account, or
b. evidence linking the account to the principal.
SECTION 11. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3111 of Title 58, unless there
is created a duplication in numbering, reads as follows:
Unless otherwise ordered by the court or provided in a trust, a
custodian shall disc lose to a trustee that is an original user of an
account any digital asset of the account held in trust, including a
catalog of electronic communications of the trustee and the content
of electronic communications.
SECTION 12. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3112 of Title 58, unless there
is created a duplication in numbering, reads as follows:
Unless otherwise ordered by the court, directed by the user, or
provided in a trust, a custodi an shall disclose to a trustee that is
not an original user of an account the content of an electronic
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communication sent or received by an original or successor user and
carried, maintained, processed, received, or stored by the custodian
in the account of the trust if the trustee gives the custodian:
1. A written request for disclosure in physical or electronic
form;
2. A certified copy of the trust instrument that includes
consent to disclosure of the content of electronic communications to
the trustee;
3. A certification by the trustee, under penalty of perjury,
that the trust exists and the trustee is a currently acting trustee
of the trust; and
4. If requested by the custodian:
a. a number, username, address, or other unique
subscriber or account i dentifier assigned by the
custodian to identify the trust's account, or
b. evidence linking the account to the trust.
SECTION 13. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3113 of Title 58, unles s there
is created a duplication in numbering, reads as follows :
Unless otherwise ordered by the court, directed by the user, or
provided in a trust, a custodian shall disclose, to a trustee that
is not an original user of an account, a catalog of electron ic
communications sent or received by an original or successor user and
stored, carried, or maintained by the custodian in an account of the
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trust and any digital assets, other than the content of electronic
communications, in which the trust has a right o r interest if the
trustee gives the custodian:
1. A written request for disclosure in physical or electronic
form;
2. A certified copy of the trust instrument;
3. A certification by the trustee, under penalty of perjury,
that the trust exists and the tr ustee is a currently acting trustee
of the trust; and
4. If requested by the custodian:
a. a number, username, address, or other unique
subscriber or account identifier assigned by the
custodian to identify the trust's account, or
b. evidence linking the account to the trust.
SECTION 14. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3114 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. After an opportunity for a hearing under Section 3 -112 of
Title 30 of the Oklahoma Statutes, the court may grant a guardian
access to the digital assets of a protected person.
B. Unless otherwise ordered by the court or directed by the
user, a custodian shall disclose to a guardian the catalog of
electronic communications sent or received by a protected person and
any digital assets, other than the content of electronic
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communications, in which the protected person has a right or
interest if the guardian gives the custodian:
1. A written request for disclosure in physical or electronic
form;
2. A certified copy of the court order that gives the guardian
authority over the digital assets of the protected person; and
3. If requested by the custodian:
a. a number, username, address, or other unique
subscriber or account identifier assigned by th e
custodian to identify the account of the protected
person, or
b. evidence linking the account to the protected person.
C. A guardian with general authority to manage the assets of a
protected person may request a custodian of the digital assets of
the protected person to suspend or terminate an account of the
protected person for good cause. A request made under this section
must be accompanied by a certified copy of the court order giving
the guardian authority over the protected person's property.
SECTION 15. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3115 of Title 58, unless there
is created a duplication in numbering, reads as fo llows:
A. The legal duties imposed on a fiduciary charged with
managing tangible property apply to the management of digital
assets, including:
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1. The duty of care;
2. The duty of loyalty; and
3. The duty of confidentiality.
B. A fiduciary's or design ated recipient's authority with
respect to a digital asset of a user:
1. Except as otherwise provided in Section 4 of this act, is
subject to the applicable terms of service;
2. Is subject to other applicable law, including copyright law;
3. In the case of a fiduciary, is limited by the scope of the
fiduciary's duties; and
4. May not be used to impersonate the user.
C. A fiduciary with authority over the property of a decedent,
protected person, principal, or settlor has the right to access any
digital asset in which the decedent, protected person, principal, or
settlor had a right or interest and that is not held by a custodian
or subject to a terms -of-service agreement.
D. A fiduciary acting within the scope of the fiduciary's
duties is an authorized user of the property of the decedent,
protected person, principal, or settlor for the purpose of
applicable computer fraud and unauthorized computer access laws.
E. A fiduciary with authority over the tangible, personal
property of a decedent, protected person, principal, or settlor:
1. Has the right to access the property and any digital asset
stored in it; and
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2. Is an authorized user for the purpose of computer fraud and
unauthorized computer access laws.
F. A custodian may disclose information in a n account to a
fiduciary of the user when the information is required to terminate
an account used to access digital assets licensed to the user.
G. A fiduciary of a user may request a custodian to terminate
the user's account. A request for termination must be in writing,
in either physical or electronic form, and accompanied by:
1. If the user is deceased, a certified copy of the death
certificate of the user;
2. A certified copy of the letter of appointment of the
representative, court order, power o f attorney, or trust giving the
fiduciary authority over the account; and
3. If requested by the custodian:
a. a number, username, address, or other unique
subscriber or account identifier assigned by the
custodian to identify the user's account,
b. evidence linking the account to the user, or
c. a finding by the cou rt that the user had a specific
account with the custodian, identifiable by the
information specified in subparagraph a of paragraph 3
of subsection G of this section.
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SECTION 16. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3116 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. Not later than sixty (60) days after receipt of the
information required u nder Sections 7 through 15 of this act, a
custodian shall compl y with a request under this act from a
fiduciary or designated recipient to disclose digital assets or
terminate an account. If the custodian fails to comply, the
fiduciary or designated recip ient may apply to the court for an
order directing compliance.
B. An order under subsection A of this section directing
compliance must contain a finding that compliance is not in
violation of 18 U.S.C., Section 2702.
C. A custodian may notify the user t hat a request for
disclosure or to terminate an account was mad e under this act.
D. A custodian may deny a request under this act from a
fiduciary or designated recipient for disclosure of digital assets
or to terminate an account if the custodian is awar e of any lawful
access to the account following the receipt of the fiduciary's
request.
E. This act does not limit a custodian's ability to obtain or
require a fiduciary or designated recipient requesting disclosure or
termination under this act to obtain a court order which:
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1. Specifies that an account belongs to the protected person or
principal;
2. Specifies that there is sufficient consent from the
protected person or principal to support the requested disclosure;
and
3. Contains a finding required by law other than this act.
F. A custodian and its officers, employees, and agents are
immune from liability for an act or omission done in good faith in
compliance with this act.
SECTION 17. NEW LAW A new section of law to be codi fied
in the Oklahoma Statutes as Section 3117 of Title 58, unle ss there
is created a duplication in numbering, reads as follows:
In applying and construing this uniform act, consideration must
be given to the need to promote uniformity of the law with resp ect
to its subject matter among states that enact it.
SECTION 18. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3118 of Title 58, unless there
is created a duplication in numbering, reads as follows:
This act modifies, limits, or supersedes the Electronic
Signatures in Global and National Commerce Act, 15 U.S.C., Section
7001 et seq., but does not modify, limit, or supersede Section
101(c) of that act, 15 U.S.C., Section 7001(c), or authorize
electronic delivery of any of the notices described in Section
103(b) of that act, 15 U.S.C., Section 7003(b).
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SECTION 19. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3119 of Title 58, unless there
is created a duplication in numbering, reads as follows:
If any provision of this act or its application to any person or
circumstance is held invalid, the invalidity does not affect other
provisions or applications of this act which can be given effect
without the invalid provision or application, and to this end the
provisions of this act are severable.
SECTION 20. This act shall become effective November 1, 2024.
COMMITTEE REPORT BY: COMMITTEE ON FINANCE
April 1, 2024 - DO PASS